Opinion
E066549
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. AARON MARVIN GRAY, JR., Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1502889) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed in part; reversed in part with directions. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Aaron Marvin Gray, Jr., appeals his conviction for illegal possession of a firearm with a gang enhancement and for active participation in a criminal street gang. He contends that there is insufficient evidence to support either the gang enhancement or the active gang participation conviction. He also asserts a number of errors pertaining to the allegations based on prior convictions. We will reverse the judgment in part and remand for resentencing.
PROCEDURAL HISTORY
An information charged defendant with one count of possession of a firearm by a convicted felon and narcotics addict (count 1; Pen. Code, § 29800, subd. (a)(1)), and one count of active participation in a criminal street gang (count 2; § 186.22, subd. (a)). The information alleged that defendant possessed the firearm for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in any criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1)(B). It also alleged that defendant was on bail at the time he committed the crimes alleged in counts 1 and 2, within the meaning of section 12022.1. The information further alleged that defendant had served two prior felony prison terms, within the meaning of section 667.5, subdivision (b), and had suffered one prior serious felony conviction, within the meaning of section 667, subdivision (a). The information also alleged two strike priors, within the meaning of section 667, subdivisions (c) and (e)(1), and section 1170.12, subdivision (c)(1).
All further statutory citations refer to the Penal Code unless another code is specified.
There was no evidence that defendant was a narcotics addict.
An amended information was filed, but defendant was never arraigned on it.
The parties stipulated to defendant's prior felony conviction for purposes of count 1. A jury convicted defendant on both counts and found the gang enhancement allegation true. Defendant admitted all prior conviction allegations, and the trial court accepted his admissions. (The court did not explicitly find the allegations true.) The court found the on-bail allegation true.
The court denied defendant's motion to strike one of the strike priors. It sentenced him to a term of 25 years to life on count 1, plus five years for the prior serious felony conviction enhancement. The court imposed and stayed a two-year term on count 2, a four-year term for the gang enhancement on count 1, a two-year term for the on-bail enhancement, and two one-year terms for the prior prison term enhancements.
Defendant filed a timely notice of appeal.
FACTS
On June 27, 2015, Riverside County Sheriff's Deputy Howard and his partner, Deputy Daugherty, were patrolling the Edgemont neighborhood in Moreno Valley. Edgemont has a high rate of crime and of gang activity. A horseshoe-shaped area known as "the shoe," consisting largely of apartment complexes, is the turf of the Edgemont Criminals Gang, also known as EMCG. The gang had approximately 200 members. Its primary activities were burglary, robbery, assault, attempted murder, gun possession, narcotics sales, and vehicle theft. Their chief rival was a gang called Sex Cash Money, which claimed territory in northern Moreno Valley. One active member of EMCG was convicted for the 2011 attempted murder of a member of Sex Cash Money. Another active member of EMCG was convicted for a 2012 illegal possession of a firearm. Defendant was a known member of EMCG. In 2011, defendant admitted having been jumped into the gang in 2008 and that his moniker was "Smurf."
By the time of the trial, Daugherty had been promoted to corporal.
At approximately 5:00 p.m. on June 27, 2015, the deputies saw defendant emerge through the gate of an apartment complex, along with Temeka Garrett. Garrett was also a known EMCG member, with gang tattoos. At the time of the incident underlying this case, defendant was wearing attire associated with EMCG and had numerous visible tattoos reflecting EMCG's symbols. His attire included a jersey with five stars on it. The five stars reflected his status as an older member of the gang, or "five-star general." Garrett was also wearing gang-related attire.
Defendant and Garrett appeared to notice the police car and started walking in the opposite direction. Desiring to speak to defendant and Garrett, the deputies parked the car and got out. Defendant looked back at them and then began to run. Howard pursued defendant on foot, while Daugherty got back into the car and drove through an alley in an effort to intercept him. He also called for backup. Defendant ran to the side of an apartment complex, passed a laundry room, and stopped behind a bush. He appeared to throw something. He then stepped out from behind the bush. Howard pointed his gun at defendant and ordered him to get down on the ground. Defendant just stared at him. Howard grabbed defendant's arm, put him in a rear wrist lock, and pushed him up against a wall. Less than a minute later, another deputy arrived and handcuffed defendant.
Howard searched the area and found a .22-caliber revolver on the ground under the bush. The revolver contained five live rounds. It did not appear to have been there long. Howard later ran the serial number on the gun, but there was no match. As Daugherty was booking defendant at the station, defendant spontaneously stated, "I stole the gun."
The parties stipulated that defendant had previously been convicted of a felony and was prohibited from owning, possessing, or receiving a firearm, within the meaning of section 29800, subdivision (a)(1).
The deputies involved in this incident were members of a gang task force and all had knowledge of and experience with EMCG. Deputy Reyes, who was not involved in the incident, testified as an expert on EMCG's history and culture. We omit discussion of much of this evidence, in that it is not relevant to the issues raised in this appeal. The following evidence pertains to defendant's contention that there was insufficient evidence to support the gang enhancement and the substantive charge of active gang participation:
Deputy Reyes described six shootings or incidents involving guns and involving EMCG that occurred between February 2015 and July 2015. At least one involved a rival gang member who assaulted EMCG members. Because of the number of shootings in the neighborhood and the possibility that rival gang members might come into the neighborhood to assault EMCG members, Reyes said that it is important for EMCG members to know where they can get a gun if one is needed. For the same reason, Reyes stated, it is important that a person who is with another gang member knows whether his or her companion is armed. If the other person is armed, that knowledge allows the companion to feel safer and to be bolder in "checking," or challenging, someone. The latter is related to the gang concept of respect, i.e., the ability to foster fear and intimidation. Reyes testified that if there is a confrontation with a rival gang member or someone who should not be in EMCG's turf, a member would be expected to respond with "a higher force, a higher violence." This is a matter both of intimidation of rivals and earning respect within EMCG.
Because most gang members have felony records and therefore cannot buy guns legally, EMCG maintained a number of gang guns, which are kept in locations known to and accessible to members. Gang guns are controlled by a "sergeant at arms," who checks them out to members. If a member does not return a gang gun, he can expect to be disciplined. The location where defendant concealed the gun in this instance was the apartment complex where EMCG's "shot caller," Jamil Bell or BG, lived, and was in fact only a few feet from Bell's apartment. Reyes opined that defendant was seeking a place of safety where he could hide and could stash the gun. Reyes was aware that guns had been found in Bell's apartment in the past. A gang gun would not normally be concealed under a bush.
Reyes testified to the significance of defendant's possession of the gun, in addition to the issue of needing to have a gun if one is confronted by a rival gang member. EMCG is a territorial gang that controls the "shoe" neighborhood through violence and intimidation. Other residents in the area are afraid of retaliation if they speak to law enforcement about the gang or about crime in the neighborhood. Carrying a gun assists in creating an atmosphere of intimidation and earns respect within the gang because it shows that the member does not care about the consequences if he gets caught with the gun. Reyes testified that the "No. 1 goal" is to "have people intimidated, have them feared, so that way they are respected by other gang members, respected by their own gang, and feared by the community."
Based on all of these factors, as well as evidence that defendant associated closely with Jamil Bell, Reyes opined that defendant was an active gang member. He noted that defendant was walking freely through the high crime area, representing the gang by wearing his gang attire and displaying his tattoos, along with Garrett. He also opined that defendant's possession of the loaded gun was for the benefit of the gang and in association with the gang, because he was on gang turf, openly displaying his gang tattoos, together with another gang member who was also displaying her gang tattoos "for the gang."
LEGAL ANALYSIS
1.
THERE IS INSUFFICIENT EVIDENCE TO SUPPORT
THE GANG ENHANCEMENT
Section 186.22, subdivision (b)(1) (section 186.22(b)), provides for an additional penalty for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ."
"Not every crime committed by gang members is related to a gang." (People v. Albillar (2010) 51 Cal.4th 47, 60.) Accordingly, in order for the enhancement to apply, there must be substantial evidence in support of both prongs of the enhancement, i.e., that in committing the particular charged offense, the defendant both acted for the benefit of, at the direction of, or in association with a gang, and did so with the specific intent to promote, further, or assist in any criminal conduct by any gang member. (People v. Perez (2017) 18 Cal.App.5th 598, 606-607.) Defendant contends that such evidence is lacking in this case. He contends that "[n]othing in the circumstances surrounding [his] possession of the gun supported the conclusion that he possessed the gun for any of the gang-related purposes about which the expert testified."
In deciding whether substantial evidence supports both prongs of the enhancement, "we apply the familiar standard of review for challenges to the sufficiency of the evidence. [Citation.] We review the entire record in search of reasonable and credible evidence of solid value, viewing all the evidence in the light most favorable to the prosecution, and drawing all reasonable inferences in favor of the jury's findings. [Citations.] We cannot, however, go beyond reasonable inferences into the realm of speculation, conjecture, surmise, or guesswork. [Citation.] 'A trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true.' [Citation.]" (People v. Perez, supra, 18 Cal.App.5th at p. 607.) Testimony of a gang expert is admissible as to the conduct of gang members generally, and an expert may, based on a hypothetical question mirroring the evidence in the particular case, offer the opinion that a gang member conducting him- or herself in the manner posed by the hypothetical would be acting to benefit the gang or in association with the gang and would have harbored the requisite specific intent. (People v. Vang (2011) 52 Cal.4th 1038, 1048-1052.) However, the expert cannot properly testify that the defendant actually acted with the requisite specific intent. (Id. at pp. 1048-1049.) Any such opinion offered by the expert does not constitute substantial evidence in support of the enhancement. (People v. Perez, at pp. 610-613 and cases discussed therein.)
Here, defendant contends that the evidence does not support the enhancement because there was no evidence as to what his intent was and whether he possessed the gun to benefit the gang. He states that there is no evidence that he possessed the gun for any of the purposes the expert witness testified to: There was no evidence that the gun was a gang gun; he was not displaying the gun but was concealing it; he was not using the gun to intimidate or "check" anyone or to put in "work" for the gang, and there is no evidence that he planned to use the gun for any of these purposes or to commit another crime on behalf of the gang. There was no evidence that he intended to use it to protect himself or Garrett, and he was not in rival gang territory, where he might have needed it for protection. He was not walking through the neighborhood, but had merely come out through the apartment complex's gate, and there was no evidence that Garrett knew he had the gun.
The Attorney General responds that the first prong of the enhancement was satisfied based on evidence showing that the possession of the weapon was committed "for the benefit of" the Edgemont gang because, as the expert noted, "at the time he ran from the police while armed with a loaded handgun, [defendant] was in the Edgemont gang territory, wearing gang attire, and walking with a fellow member of the gang. By doing so, [defendant] was 'prepared' should he be confronted by a rival gang member. (1 RT 199-200.) Additionally, by possessing the gun, [defendant] had a means of intimidation that could have earned him respect from his own gang, as well as fear from the community. (1 RT 200.) As Deputy Reyes noted, respect in the gang culture 'is all about fear and intimidation.' (1 RT 173-174.) The more fear and intimidation you have, the more respect you will gain. (1 RT 174.) A gang member who carries a loaded firearm will have more respect because they are willing to carry the weapon despite the fact they are not permitted to. (1 RT 174.) Thus, the crimes benefit the gang by enhancing the reputation and the status of the gang and its members."
We disagree that this evidence is sufficient to persuade a rational trier of fact beyond a reasonable doubt either that defendant carried the gun for the benefit of the gang or that he acted with the specific intent to promote, further or assist in any criminal conduct by gang members.
With respect to the first prong, there is simply no substantial evidence that the mere act of possessing the gun benefitted the gang. The expert testified that merely having a gun benefits the gang because the gun can be used or displayed to intimidate someone, to commit a crime, or in self-defense. All of those acts would enhance the gang's reputation for violence and lead to "respect," as it is conceived in gang culture. However, it is not actually the mere possession of the gun that benefits the gang; rather, the benefit derives from some use of the gun, from merely displaying it to actually using it to commit a crime. Merely possessing it, if no one knows about it, obviously cannot engender fear or respect. To the extent that the expert's testimony implied otherwise, it is simply the kind of "sweeping generalization untethered . . . to specific evidence" of either prong of the enhancement condemned in People v. Perez, supra, 18 Cal.App.5th at pages 610 through 613. In the absence of any evidence either that defendant used the gun or that he intended to use it for some gang-related purpose, the mere fact that he possessed the gun is not sufficient to prove that he was acting for the benefit of the gang.
Nor does the fact that defendant was with Garrett suffice to support the inference that defendant was acting in association with the gang. Although the expert explained that it is important for a gang member to know whether a fellow gang member is armed in order to judge how bold to be in "checking" someone or responding to a threat from a rival gang member, there is no evidence that Garrett actually knew that defendant was armed. "Important to know" simply does not equal "actually knew." In the absence of any evidence that Garrett knew that defendant was armed, there is no rational basis for concluding that she and defendant were acting in association with one another with respect to the possession of the gun.
With respect to the second prong, there is no evidence whatsoever as to defendant's intent in possessing the gun, let alone that he specifically intended to promote, further or assist in any criminal conduct by gang members. There is no evidence, for example, that he was on his way to commit a crime for the benefit of the gang. Nor is there any evidence that defendant and Garrett jointly intended to commit any crime using the gun, whether for the benefit of the gang or for their own purposes. One may speculate as to whether they had a joint purpose or as to what that purpose might have been, but there is no credible evidence that supports the inference that they actually did have a joint, criminal purpose.
Nor does defendant's presence in "gang territory" suggest an intent to use the gun, contrary to the Attorney General's contention. His presence in a rival gang's territory might be sufficient to support the inference that he intended to use the gun to further EMCG's criminal purposes, but it is undisputed that he was within his own gang's territory. To say that he was armed because he anticipated an encounter with a rival gang member is pure speculation. Finally, the fact that he was in gang attire and displaying his tattoos does not support the inference that he specifically intended to use the gun to benefit the gang because the evidence showed that defendant habitually wore clothing with gang-related insignia and that he had gang-related tattoos on his forearms, which would necessarily be displayed if he was wearing a short-sleeved shirt. He was not otherwise "displaying" his tattoos. While evidence that he did not usually wear such attire or that he usually kept his tattoos hidden might lend support to the conclusion that in this instance he intended to commit a crime on behalf of the gang or in association with Garrett, the fact that he was wearing his usual attire clearly does not support that inference.
Both parties rely on various published opinions to assert that the presence or absence of particular facts supports or negates the sufficiency of the evidence. However, when reviewing sufficiency of the evidence, there is little value in comparing facts of the present case with facts in other cases. "Reviewing the sufficiency of evidence . . . necessarily calls for analysis of the unique facts and inferences present in each case, and therefore comparisons between cases are of little value." (People v. Rundle (2008) 43 Cal.4th 76, 137-138, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421; see People v. Thomas (1992) 2 Cal.4th 489, 516.) Accordingly, we will refrain from analyzing how the facts of this case are similar to or different from the facts in other cases. It suffices to say that while the evidence in this case is sufficient to raise the suspicion that defendant intended to use the gun in some manner that would benefit his gang, it is not sufficient to support that finding beyond a reasonable doubt. Consequently, the section 186.22(b) enhancement must be stricken.
Because we concur with defendant that the gang enhancement must be stricken, we need not address either his contention that his trial attorney provided deficient representation because he failed to object to some of the gang expert's testimony or his contention that the enhancement must be stricken instead of stayed.
2.
THERE IS INSUFFICIENT EVIDENCE TO SUPPORT
THE VERDICT ON COUNT 2
Defendant also correctly asserts that there is insufficient evidence to support the verdict on count 2, in which he was charged with active gang participation in violation of section 186.22, subdivision (a) (section 186.22(a)).
Section 186.22(a) punishes "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . ." For purposes of this appeal, defendant does not deny that at the time of this incident, he was an active member of EMCG. However, "Mere active and knowing participation in a criminal street gang is not a crime. Applying the third element of section 186.22(a), a defendant may be convicted of the crime of gang participation only if he also willfully does an act that 'promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22(a).)" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130-1131.) In enacting section 186.22(a), the Legislature "sought to punish gang members who acted in concert with other gang members in committing a felony regardless of whether such felony was gang related." (Rodriguez, at p. 1138.) A gang member who commits a crime alone does not violate section 186.22(a). (Rodriguez, at p. 1139.) Defendant contends that there is no evidence that he possessed the gun jointly, and that because the evidence shows that he acted alone, his conviction on count 2 must be reversed.
The Attorney General argues that, contrary to defendant's claims, defendant did not act alone for the following reasons:
"[Defendant] was walking with fellow Edgemont gang member, Tamika Garrett, when he was first observed by police, moments before he ditched his weapon after a brief chase. (1 RT 181.) [Defendant] suggests that there was no evidence that Garrett was aware that [defendant] possessed the gun. (AOB 34.) However, Deputy Reyes described the concept of a 'gang gun' which are weapons used by the gang, are kept somewhere safe, and are accessible to gang members when needed. (1 RT 172.) Additionally, according to Deputy Reyes, if two active Edgemont members were walking together and one had a firearm, it would 'definitely' be important for the second person to know the first had a weapon. (1 RT 173.) A reasonable inference from this evidence is that Tamika Garrett was well aware of the fact that [defendant] had a weapon and she was using it to her advantage, knowing that she was safe in the event the two were confronted by rivals. [¶] Thus, under the circumstances here, substantial evidence therefore established [defendant] did not act alone in committing criminal acts, but he acted in concert with Garrett for the benefit of Edgemont. This evidence satisfies the third prong of participating in a criminal street gang. (Rodriguez, supra, 55 Cal.4th at p. 1130.)"
In order to support the conclusion that Garrett was acting in concert with defendant in possessing the gun, there had to be evidence that she knew he had it. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) As we discussed in section 1, the fact that it is important for a gang member to know whether her companion is armed is not substantial evidence that Garrett in fact did know that defendant had the gun.
The Attorney General also refers to the evidence about "gang guns," i.e., guns possessed by the gang itself and "checked out" to members by those who control the guns. However, there is no evidence either that all guns possessed by members are gang guns or that this particular gun was a "gang gun." (See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417.) But even if it were a gang gun, Garrett would still need to know defendant had it in order to be acting in concert with him to possess it. Possession requires knowledge of the presence of the item. (People v. Jeffers, supra, 41 Cal.App.4th at p. 922.) It also requires the right to exercise dominion and control over it. (People v. Sifuentes, at p. 1417.) Mere proximity to a weapon is not sufficient evidence that the person possessed it. (Ibid.)
For all of these reasons, the judgment must be reversed as to count 2.
3.
THE PRIOR SERIOUS FELONY ENHANCEMENT
MUST BE STRICKEN
Section 667, subdivision (a) (section 667(a)), provides for a five-year enhancement if a person has been convicted of a serious felony and has previously been convicted of a serious felony. (§ 667(a)(1).) Such an enhancement was found true in this case.
In a supplemental brief filed shortly after the opening brief was filed, defendant argues that if the gang enhancement is stricken, the prior serious felony enhancement must also be stricken because without the gang enhancement, illegal possession of a firearm in violation of section 29800, subdivision (a)(1), is no longer a serious felony. We agree.
For purposes of the section 667(a) enhancement, serious felonies are those listed in section 1192.7, subdivision (c). (§ 667(a)(4).) A violation of section 29800, subdivision (a)(1), is not listed in section 1192.7, subdivision (c). It becomes a serious felony only if it "would also constitute a felony violation of Section 186.22." (§ 1192.7, subd. (c)(28).) The Attorney General concedes that defendant's argument is correct with respect to the violation of section 29800, subdivision (a)(1). However, he contends that the enhancement nevertheless applies, because a violation of section 186.22(a) is a serious felony under section 1192.7, subdivision (c)(28). This is correct. (People v. Briceno (2004) 34 Cal.4th 451, 456, 458-459.) However, because we have determined both that the gang enhancement must be stricken and that defendant's conviction for violating section 186.22(a) must be reversed, the section 667(a) enhancement must be stricken as well.
In his opening brief, defendant argued that the prior serious felony enhancement must be stricken because he did not admit that the underlying felony was a serious felony. We reject that contention for the same reason we reject defendant's similar argument with respect to the prior prison term enhancements, discussed in section 4, post. In light of our conclusion that the prior serious felony enhancement must be stricken for the reasons discussed above, we need not address defendant's other contention in any detail.
4.
THE SECTION 667.5, SUBDIVISION (B) ENHANCEMENTS
The information alleged two prior prison term enhancements, pursuant to section 667.5, subdivision (b) (section 667.5(b)). Defendant waived a jury trial on the enhancements. Defendant contends that the trial court's true finding on the enhancements must be reversed because he did not admit to having served either prison term.
Section 667.5, subdivision (b), provides: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony; provided that no additional term shall be imposed under this subdivision for any prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended. A term imposed under the provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision, shall qualify as a prior county jail term for the purposes of the one-year enhancement."
In the alternative, he argues that the section 667.5(b) enhancement based on his October 21, 2008 enhancement must be stricken because the section 667(a) enhancement was also based on that conviction, and that the second section 667.5(b) enhancement must be stricken rather than stayed.
A. Sufficiency of the Advisement
In taking defendant's admission to the prison priors, the court advised defendant as follows:
"Well, let's be clear. In the First Amended Information that was the trial we had in this department, that is in case ending in 889, there are two prior offenses alleged, and then the special allegation of the serious prior under 667 and 1170, that's the strike prior.
As noted above, defendant was not arraigned on the first amended information. The prior prison term allegations were identical in both version of the information, however. --------
"Do you understand Prior Offense No. 1, it was alleged on or about October 21st, 2008, you were convicted of the crime of assault with a deadly weapon, a felony, in violation of Section 245(a)(1) of the Penal Code, in this county, and that you served a prior prison term for that offense?
"Prior Offense 2 is alleging on or about November 8, 2011, again in this county, that you were convicted of a felony in violation of Section 245(a)(1) of the Penal Code and served a separate term in prison for that.
"And that on October 21st, 2008, that you were convicted of a felony, that is an assault with a deadly weapon and is also charged as a serious prior offense, and the special allegation alleged under 1170 and 667 that makes that a strike prior. And the second strike prior is that on or about June 17th . . . [¶] '15—you were convicted of an attempted robbery within the meaning of 664/211 of the Penal Code, within the meaning of 667 and 1170. That is the second strike prior.
"Based on what [defense counsel] has told you after review of the document, the issue is whether or not you sustained those priors. Sir, it is strictly an issue of identity. You were already convicted. It is not on the issue of guilt or innocence with respect to those. Just that you are the person that committed those priors, but you do have a right to a trial on those priors."
After defendant was advised of his constitutional rights and stated that he understood them, the colloquy continued:
"THE COURT: And it is your understanding of those rights that you will waive or give up the rights to have the Court further review that trial and admit the priors are true at this time. Is that correct, sir?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. So the first prior offense alleged on October 21st, 2008, you would admit that prior is true. Is that correct, sir?
"THE DEFENDANT: Yes, sir.
"THE COURT: The second prior offense from November 8th, 2011, you would admit that prior is true?
"THE DEFENDANT: Yes, sir.
"THE COURT: And the special allegation, the first one, again, it alleges the same prior on October 21st, 2008. That prior is an assault with a deadly weapon, [defendant]. Do you admit that is true, sir?
"THE DEFENDANT: Yes, sir.
"THE COURT: And the second special allegation alleges a different prior. That is the one you were on probation for at the time of this case, June 17th, 2015, that was the attempted robbery. Do you admit that prior?
"THE DEFENDANT: Yes, sir."
The court accepted the admissions.
Defendant now contends that because the court restricted his admissions to his identity and the fact that he suffered the convictions, but did not have defendant expressly admit that he served two separate prison terms, the admissions failed as proof of all of the elements of the enhancements. He notes that the prosecution relied solely on defendant's admissions and did not offer any other proof.
Defendant acknowledges that a defendant's admission of an enhancing allegation is normally valid even if it does not include a specific admission of every factual element required to establish the enhancement. (People v. French (2008) 43 Cal.4th 36, 50.) However, he contends that this rule does not apply in his case because the trial court explicitly excluded any element of the enhancing allegation other than defendant's identity as the person who "committed those priors." Furthermore, when the court actually took defendant's admissions, it referred only to the first prior offense committed on October 21, 2008, and to the second prior offense committed on November 8, 2011, and omitted any mention of prison terms served for those offenses.
Defendant relies on People v. Epperson (1985) 168 Cal.App.3d 856 (Epperson) and People v. Lopez (1985) 163 Cal.App.3d 946 (Lopez). In Epperson, the court concluded that the defendant's admission of his prior convictions, which did not include an explicit admission of the separate prison term requirement, could not be construed "as including admissions of all the necessary elements of the enhancements alleged under Penal Code section 667.5, subdivision (b)." (Epperson, at pp. 864-865.) In Lopez, the court stated: "[T]he record does not indicate that the amendment to the felony complaint was read to defendant, that he waived a reading thereof, or that he was ever advised that by admitting the validity of the prior convictions he would also be admitting that he served separate prison terms therefor. Thus, his admission that the prior convictions were valid cannot be construed as an admission of the allegations that he served prior, separate prison terms for each of those convictions." (Lopez, at p. 951.)
Both Lopez and Epperson were decided in 1985. In 1986, the California Supreme Court decided People v. Thomas (1986) 41 Cal.3d 837. In that case, the court addressed a claim that the defendant's admission of prior conviction allegations was insufficient because he did not specifically admit that his prior burglaries involved entry into a residence and because the information did not expressly state that the prior burglary convictions constituted serious felonies because they involved entry into a residence. (Id. at p. 842.) The court stated that it is the function of counsel to explain to the defendant the elements of an offense or an enhancement, and that is "'appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.'" (Id. at p. 844, citing and quoting Henderson v. Morgan (1976) 426 U.S. 637, 647.) "Here we have neither claim nor finding that defendant was not advised of the elements of the charge and enhancements. From all that appears on the record this is no different than any other case in which counsel explains to his client the basis of the charges, and the client, in admitting the charges, knowingly admits each of the elements of that charge. [Fn. omitted.] If defendant wants to assert that in fact he was not properly advised of the basis of the serious felony charges, he will have to do so by petition for a writ of habeas corpus. [Fn. omitted.]" (Id. at p. 844.)
In this case, immediately before the court began the process of advising defendant and then taking his admissions to the prison prior allegations, defense counsel stated that he had just reviewed the "969b package"—i.e., the certified documents establishing the prior conviction and prior prison term allegations (§ 969b)—with defendant. We have no reason to believe that counsel did not properly advise defendant as to whether the allegations could be proven if he chose to have a trial on those allegations. As in People v. Thomas, supra, 41 Cal.3d 837, if defendant believes he was not properly advised that the 667.5(b) allegations included the allegation that he had served a prison term, he may assert that claim by means of a petition for writ of habeas corpus.
B. Both Section 667 .5(b) Enhancements Were Properly Imposed.
Defendant contends that the court improperly imposed a one-year enhancement under section 667.5(b) for the same prior conviction for which it imposed a five-year enhancement pursuant to section 667(a). This contention is moot, in light of our conclusion, as discussed in section 3, ante, that the section 667(a) enhancement must be stricken.
Defendant also points out that at sentencing, the court imposed a one-year term for each of the two section 667.5(b) enhancements, but stayed the punishment on both. He asserts that such an enhancement must be either imposed or stricken. He is correct; there is no provision for staying such an enhancement, and doing so results in an unauthorized sentence. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Bradley (1998) 64 Cal.App.4th 386, 390.) He contends that in the interest of judicial economy, we should simply order the enhancements stricken.
The Attorney General concurs that the stayed sentences are unauthorized, but argues that we should remand the cause for resentencing to allow the trial court to exercise its discretion. Because we have stricken the five-year section 667(a) enhancement, we agree that remand for resentencing is appropriate to allow the trial court to exercise its discretion with respect to imposing or striking the section 667.5(b) enhancements.
5.
THE TRIAL COURT FAILED TO CALCULATE DEFENDANT'S
PRESENTENCE CREDITS
At sentencing, the trial court stated that the presentence credits "aren't accurate," presumably as reflected in the probation report. The court suggested that the probation department calculate the credits and submit them to counsel. If either party disagreed with the department's calculation, "you can come back into this court."
The parties concur that this was improper. We agree: It is the trial court's duty to calculate the number of days earned and the court may not delegate that duty. (People v. Allen (1980) 105 Cal.App.3d 310, 314-315; §§ 2900.5, subd. (d), 4019, subds. (a), (b), (c).) The intent of this provision is "to provide for determination of presentence credits at the time of sentencing, to assign the task of resolving factual and legal disputes to the sentencing court, and to insure an adequate record for appellate review and administrative application." (People v. Blunt (1986) 186 Cal.App.3d 1594, 1601.) Accordingly, on remand, the trial court shall calculate and award the presentence credits to which defendant is entitled.
DISPOSITION
The judgment is reversed as to count 2. The enhancement imposed on count 1 pursuant to section 186.22, subdivision (b)(1)(B), and the enhancement pursuant to section 667, subdivision (a), are stricken. The judgment is otherwise affirmed.
The matter is remanded for resentencing. The superior court is directed to determine whether to impose or strike the enhancements pursuant to section 667.5, subdivision (b).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.